Internet users cannot simply copy a photograph posted, without any restriction preventing it from being downloaded and posted with the copyright holder’s consent, on one website and republish it on another website.
A photographer sued a German school after it published on its website a presentation written by one of its students who had included a photo of Córdoba which the student had downloaded from a travel website. The photographer asserted rights in the image which he had licensed to the travel website and claimed that posting the photograph on the school’s website infringed his copyright.
What rights does a photographer have?
Copyright holders have the exclusive right to authorise or prohibit any communication to the public of their works (Article 3 Directive 2001/29), subject to certain limitations.
The key to understanding the extent of that right lies in understanding what a “communication to the public” means.
First, it involves an act of communication. That is relatively self-explanatory, although it is worth noting that it is sufficient that a work is made available to a public such that persons can access it, whether or not they in fact avail themselves of that opportunity.
Secondly, the protected work must be communicated to a public. The concept of “public” has been held to refer to an indeterminate number of potential recipients and implies a fairly large number of persons.
The complication arises from decisions of the court that a “communication to the public” requires either communication using technical means different from those used for the copyright holder’s initial publication or publication to a “new public”, i.e. a public that was not taken into account by the copyright holder when it authorised the initial publication.
Did the school’s publication of the photograph infringe the photographer’s rights?
There is no question that publication on the school’s website was an act of communication. But was it made to a “new public”, distinct from the internet users to whom the original publication was made? In the view of the Court of Justice of the European Union, the answer is “yes it was” (Case C-161/17 Land Nordrhein-Westfallen v Dirk Renckhoff).
To hold that the school did not publish to a new public would have deprived of its effectiveness the preventative nature of copyright holders’ right to intervene in the use of their works and deprive copyright holders of the opportunity to claim an appropriate reward for use of their works.
The outcome is different to the court’s recent decisions on the publication of hyperlinks to copyright works which generally do not infringe. The court justified the difference in approach on grounds that, unlike a hyperlink (which just links back to the initial, authorised publication over which the rights holder had some control), where there is a new publication of a work by an unconnected third party, a copyright holder can no longer exercise control over the communication of that work. Also, hyperlinks contribute to the sound operation of the internet, whilst the unauthorised publication of works does not.
The decision is likely to encourage copyright holders’ to take a more aggressive stance in protecting their rights and an upturn in claims for unauthorised use of copyright images online is likely.